They also have incredible memories and can ignore the notary rules, too.
In every lawsuit, one of the first and most important steps is service of process on the defendant. In a foreclosure action, service of process consists of the Lender’s attorneys informing the homeowner that the property is being foreclosed upon. The courts have very specific rules regarding how the homeowner may receive this information. The Process Server (the person you see in the movies handing an envelope to a Defendant saying “You’ve been served,” and then running away) must sign an affidavit swearing that all the rules were followed and specifying how the homeowner was informed. If the court sees that these rules were not followed, it has to throw out the entire case.
“Sewer Service” Gets Flushed
Our office recently had a judgment voided and a foreclosure sale set aside due to an affidavit of service so flawed as to constitute a fraud on the court. The errors in this affidavit include:
- Gender confusion of a nonexistent resident—if the homeowners themselves are not available to be served, someone over the age of 15 and residing with the homeowners can receive it instead (called “Substitute Service”). Here, the homeowners swore under oath that no one lived with them, yet the Process Server claims in the affidavit he/she served a middle-aged woman named “Mr. Munoz,” supposedly a “co-tenant.”
- Receipt of process to service in impossible time—the process server, located in Tampa, Florida, indicates on the affidavit when they received process from the Lender’s attorney. They then state that they served the process on the mysterious “Mr. Munoz” six minutes later at the Homeowner’s residence in Brooklyn, New York.
- Process Servers cannot possibly recall with full detail one specific two-year-old case—the process server executed the affidavit nearly two years after the original service of process, claiming he/she remembered all the facts of this particular assignment without needing reference to ANY records.
- Rules regarding the administration of oaths were blatantly ignored—the person alleging the facts stated in the affidavit must be the same person executing the affidavit. This is confirmed through the administration of an oath by a Notary Public, who then signs & stamps the affidavit, stating how they confirmed the identity of the person executing, either by personal knowledge or satisfactory evidence, like production of proper identification. The affidavit fails show such a statement by the Notary Public.